Golder, Benedict --- "Guantanamo: What the World Should Know by Michael Ratner & Ellan Ray and Guantanamo: America's War on Human Rights by David Rose" [2005] SydLawRw 29; (2005) 27(3) Sydney Law Review 579

• Book Reviews

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Book Reviews

GUANTÁNAMO: WHAT THE WORLD SHOULD KNOW by Michael Ratner and Ellen Ray, Scribe Publications, Melbourne, 2004, xxiv + 165 pp, ISBN 1920769277

GUANTÁNAMO: AMERICA’S WAR ON HUMAN RIGHTS by David Rose, Faber & Faber, London, 2004, viii +168 pp, ISBN 0571226701

The two books under review in this piece, Michael Ratner and Ellen Ray’s Guantánamo: What the World Should Know, and David Rose’s Guantánamo: America’s War on Human Rights, are part of an emergent literature on one specific (albeit increasingly synechdochi c) aspect of the United States-led ‘War on Terror’

— the indefinite detention of ‘unlawful combatants’ at Guantánamo Bay Naval Station, in Cuba. Like much of the broader post-11 September 2001 literature on counter-terrorism and human rights, these books represent an attempt to publicize exactly what the US is doing in that part of the world. As such, they are both impressive examples of investigative journalism and courageous acts of resistance in their own right. However, both books suffer from important flaws in how they read Guantánamo as a legal and political artifact — flaws which seriously affect our ability to comprehend the practices of the US military and, more importantly, to resist them. Before turning to address what I perceive to be the analytical failures of both books, I want first to introduce them and to comment on their (quite significant) achievements in documenting the US’s detention and interrogation practices in Guantánamo.

Both books are written for a general readership in an accessible and highly engaging style. Ratner and Ray’s book is, in fact, constructed largely in the form of an interview — the interviewer, Ray, is president of the Institute for Media Analysis (New York) and is an investigative journalist of some considerable experience, whilst the interviewee, Ratner, is (among other things) president of the Center for Constitutional Rights (‘CCR’), an organization which has litigated many of the human rights violations of the US government both before and after 11 September 2001. Importantly, Ratner was co-counsel in the historic US Supreme Court case of Rasul v Bush [2004] USSC 2809; 124 S Ct 2686 (2004). Their book consists of four short chapters, structured in a typical ‘question and answer’ interview format, followed by an ‘Afterword’ (written by Ratner on the effect of the Supreme Court’s decision in Rasul v Bush) and some useful appendices containing legal and governmental documents referred to in the body of the text.

The interview begins in chapter 1 with some interesting remarks on the legal and political history of Guantánamo Bay Naval Station and how the US came to acquire the territory from Cuba in 1903 on a perpetual lease (pp1–4). It then moves to some legal details and case history of the Rasul v Bush litigation (pp7–15), followed by a discussion of both the US administration’s non-application of the Geneva Convention to alleged al Qaeda members and their summary detention of non-citizens under Presidential mandate in the ‘War on Terror’ (pp15–29). Chapter 2 deals with allegations of torture both from within Guantánamo itself as well as in Afghanistan and Iraq, whilst chapter 3 relates the stories of various CCR clients currently detained in Guantánamo. The concluding chapter is probably the least interesting to the general reader interested in what is currently happening in Guantánamo (and, conversely, perhaps the most interesting to lawyers), as it is largely concerned with the legality of the US administration’s proposed Military Commissions and with Ratner’s attempts to predict the outcome of Rasul v Bush. However, as with the preceding discussion, this more legalistic material is rendered in clear, intelligible, and sometimes even conversational, prose. Given the book’s aims and general orientation, I consider this to be one of its strengths. At times, however, the interview format loses in critical rigour what it gains in explanatory force. ‘Is that right, and is that fair?’, Ray ‘questions’ Ratner at one stage (p73). Indeed, this is quite characteristic of their conversations throughout the book. Readers seeking either a probing discussion of Ratner and CCR’s stance and/or a nuanced engagement with the politico-legal arguments of the US administration and its apologists (such as they are) will be disappointed in Ratner and Ray’s book. Yet, to be fair, Guantánamo: What the World Should Know never pretends to that depth of analysis, and on balance the book is an incredibly valuable catalogue of some of the human rights abuses perpetrated by the US military in Guantánamo in the specious name of ‘freedom’. The book not only documents these abuses but, more importantly, gives a voice to the detainees themselves — either through relating their particular stories (as in chapter 3) or through letting them speak for themselves (as with the open letter from British detainees Shafiq Rasul and Asif Iqbal, extracted in the appendices at pp154–158).

Like Ratner and Ray’s book, Rose’s Guantánamo: America’s War on Human Rights, is written more in the genre of polemic than academic analysis, and, as with the previous book, the sacrifice of nuance to moral and rhetorical force involved in telling the story of Guantánamo does produce a powerful indictment of the US’s detention and interrogation practices. Rose is an investigative journalist who has written extensively about the failings of the British criminal justice system, and he brings this experience to bear on Guantánamo in the form of a personal narrative of discovery. In Guantánamo: America’s War on Human Rights, Rose follows the stories of the British detainees released from Guantánamo early in 2004. His investigations lead him to the Pentagon and to Guantánamo itself, where, through journalistic observation and interviews with some surprisingly candid administration officials, he attempts to understand what gave rise to, and what sustains, Guantánamo’s system of indefinite detention. In doing so, he encounters some disturbing individuals (among them, Major-General Geoffrey D. Miller, one of the architects of Guantánamo’s brutality seconded to Abu Ghraib with infamous effect) and he uncovers some similarly disturbing facts. However, it is probably the relation of the detainees’ individual stories that is Rose’s most powerful tool. The story that Asif Iqbal tells of his transportation in a container out of Afghanistan by the US-backed Northern Alliance troops, in which he almost suffocated to death and survived only because ‘someone made holes [in the container] with a machine gun’ (p13) is among the most harrowing.

Rose has collected many other important details on the everyday internment and interrogation of detainees at Guantánamo, and is on this score more effective than Ratner and Ray at placing the reader within the camps and bringing to life the routine discipline and violent abuse which is the detainees’ daily lot. In addition, Rose creates a vivid picture of the life which the military guards lead at Guantánamo. From the giant plasma screens which broadcast Donald Rumsfeld’s press briefings into the mess hall (pp56–57) to the saturation of ‘9/11’ iconography throughout the camp (p58), and finally to the (obligatory) souvenir shop which sells Guantánamo merchandise emblazoned with the picture of a savage dog clenching the ankle of a detainee (p87), it is hardly surprising that the atmosphere in which the detention and interrogation of prisoners takes place constructs, in the euphemistic words of a Professor of Forensic Psychiatry whom Rose interviewed, almost insuperable ‘barriers to intimacy’ (p65). Rose’s account of what is happening in Guantánamo is thorough, timely and incredibly important — he details some shocking practices of the US military and for this reason alone his book is of great value. However, it is in its final chapter, entitled ‘The Meanings of Guantánamo Bay’ (pp129–158), in which Rose proffers several readings of the legal and political situation in the camps, that his book loses much of the critical edge it has accrued in the preceding pages. Because Rose’s book happens to share its main analytical failings with Ratner and Ray’s book, I conclude now with a general discussion of two of the most important of these theoretical shortcomings as represented in both books under review.

The first of these failings is how both books conceive of the relationship between Guantánamo Bay and the rule of law. For all their critical energy and moral passion, both books rehearse the now familiar and self-satisfyingly legalistic position that Guantánamo is a ‘legal black hole’ (to borrow the language of the English Court of Appeal in R (on the application of Abbasi et al) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 at [32]). Whatever the spatial metaphor used to describe Guantánamo’s putative lawlessness — whether it be depicted as a ‘law-free zone’ (Ratner and Ray, ppxxi, 81), as a ‘black hole’ as per the English Court of Appeal (Ratner and Ray, p23; Rose, pp10, 32, 137), or simply as a place ‘outside’ (Rose, p11) or ‘beyond the law’ (Rose, p31) — the assumption of all three authors is that there is a fundamental absence of law at Guantánamo. The corollary to this assumption is that the reassertion of the rule of law will solve the problem of Guantánamo, and indeed this assumption is implicit throughout, and made more explicit towards the end of, both works. Ratner concludes his and Ray’s text with an upbeat ‘Afterword’ which asserts that ‘[t]here is still a lot of work to do; restoring the rule of law will be a hard but worthwhile struggle’ (p97), while Rose goes further in his paean to the rule of law, dedicating most of his final chapter to a strident critique of how the Bush administration is assaulting the progressive values of Enlightenment rationality, constitutionalism and the separation of powers. He writes: ‘If the United States and its constitution stand for anything, it is the ambition expressed by the Enlightenment: the replacement of absolute monarchy with codified, rational, legally-answerable government’ (p137). This review is not the place to advance a full argument on how the concepts of rationality and the rule of law have historically (and indeed in the present) been mobilized both to produce and to conceal oppression of the poor, women, ethnic minorities, gays and lesbians, and other socially marginalized groups. Suffice it to say, however, that Ratner, Ray and Rose’s liberal legalist assumption that the rule of law is the antidote to violence and suffering, instead of frequently its cause, precludes a more progressive critique on their part (and ours, as accepting readers) of the many different ways in which codified, rational legality can perpetrate the most hideous social injustices. Indeed, my point is that Guantánamo itself is just one such example: far from being a non-legal space, it is arguable that Guantánamo is perhaps the legal space par excellence. Lawyers have chosen the precise location of the camp (with concrete jurisdictional aims in mind); lawyers have argued at length over the precise legal justification for Guantánamo and the precise legal status of its detainees (to which Ratner and Ray’s extensive appendices attest); and, lawyers (to our eternal professional discredit) have drafted precise instructions on how to deal with the detainees pursuant to these legal classifications. Far from being a lawless island of violence, where anything goes, Guantánamo in fact emerges from these accounts as a legally determined, hyper-regulated space (there is no shortage of rules and regulations in Guantánamo — see Rose, pp69–70) in which the detainees are legally classified and subjected to a finely calibrated legal violence. Whether one agrees that Guantánamo is in fact a function of modern law, rather than a symptom of its dangerous absence, the repetition of the now almost mantric slogan that Guantánamo is a ‘legal black hole’ prevents us from seeing the many ways in which the treatment of detainees at Guantánamo is in fact entirely consistent with modern law’s (often violent) techniques of classification, exclusion and discrimination.

My second major criticism of both books is that they do not address one of Guantánamo’s most important functions — namely, as political symbol. Both books focus on the practicalities of Guantánamo’s role in the ‘War on Terror’. Ratner argues that it is counter-productive in that it fosters enmity in Arab and Muslim communities and sets a dangerous precedent for the treatment of prisoners (pp5–6), whilst Rose goes further in saying that the most important criticism to be made of Guantánamo is neither legal nor moral, but that as a means of gathering intelligence it is singularly ineffective (p11). I can appreciate the strategy of raising these instrumentalist arguments, but it is remarkable that in two books otherwise quite alive to the importance of representation (Ratner likens Guantánamo to the ‘Château d’If from the Count of Monte Christo’ (p6) and ‘Dante’s ninth circle of hell’ (p39), while Rose devotes a full chapter to elucidating the meanings of Guantánamo), neither book really addresses the symbolic work that Guantánamo performs. Paying attention to the symbolism of Guantánamo prompts us to read it not as something the US is necessarily trying to wholly cover up, but rather as something it is trying to broadcast to the world, as a calculated move in a wider and more complex system of representation which serves to (racially) discipline Arab and Muslim communities. Rose himself hints that this meaning (or function) of Guantánamo is intended to transcend the camp’s spatial location, when he relates the story of how when the British detainees returned to their home town of Tipton, they were greeted with effigies of men in orange jumpsuits hung from the lampposts (p130). Reading Guantánamo as symbol means that we forsake the attempt to uncover the ‘secret, truer reason’ of the camp’s purpose (Rose, pp136– 137) and read instead the messages produced on the surface. Perhaps the expressed intention of intelligence-gathering is subordinate to, or works in tandem with, this symbolic function. Regardless, my general criticism here (and above, with respect to the relationship between Guantánamo and the rule of law) is that whilst both books are passionately opposed to what is going on in the camps, and do provide much information for activists, scholars and the general public to absorb, they are nevertheless ultimately limited by their theoretical positions in what they can say and do about Guantánamo.

BENEDICT GOLDER Part-Time Lecturer, School of Law, University of East London